01/04/2023
1996 C L C 1923
[Azad J & K]
Before Khawaja Muhammad Saeed, C. J and Choudhary Muhammad Riaz Akhtar, J
Mst. NASIMA BIBI‑‑‑Appellant
versus
MUHAMMAD FARID‑‑‑Respondent
Civil Appeal No. 16 of 1996, decided on 19th June, 1996.
Oaths Act (X of 1873)‑‑
‑‑‑‑S. 9‑‑‑Civil Procedure Code (V of 1908), S. 96‑‑‑Decision of suit on oath‑‑Whole proceedings relating to oath had been conducted in arbitrary and unguided manner‑‑‑Trial Court failed to record even statement of deponent‑‑Proceedings in question, having not been conducted in terms of Oaths Act, 1873 impugned judgment and decree recorded by Trial Court were, not in accordance with legal requirements and, therefore, not maintainable‑‑‑Proceedings conducted in civil matters must be in writing and same should be kept on record so as to be available for Appellate Courts to see and judge whether same were conducted and orders passed in accordance with material available on record or not‑‑‑Judgment and decree passed by Trial Court were set aside and case was remanded for proceedings with the same in accordance with law.
Lakhi Zaman for Appellant.
Ch. Muhammad Hussain Chatha for Respondent
ORDER
This is an appeal against the judgment and decree passed on January 31 1996 by Judge Family Court, Muzaffarabad.
2. The necessary facts for the resolution of the present controversy briefly stated are that the plaintiff‑appellant brought a suit for the recovery of Rs.20,000 as dower amount on June 17, 1993 in the Court of Judge Family Court, Muzaffarabad. The defendant‑respondent filed his written statement on March‑ 7, 1994 in which he had pleaded that plaintiff‑appellant happily resided with him till December, 1992. Later on she was taken by her parents to their home alongwith the defendant‑respondent who was also invited at a dinner, where he was compelled to put his thumb‑impression on a written divorce deed. He claimed that he had paid dower money at the time when ' Nikah' was solemnized. The trial Court on August 3, 1994, framed as many as five issues including the one for relief. On February 18, 1995, an application was moved by the plaintiff‑appellant that the controversy at issue be decided on oath. She in her application also incorporated the form of oath in the following words:‑‑
The offer was not immediately communicated by the trial Court to the defendant as this application finds no mention in the order of the trial Court passed on February 18, 1995 which reads as under:‑‑
Later on, the trial Court recorded the evidence of the parties. On October 3, 1995, the learned counsel for the respondent made an oral offer before the trial Court that the controversy between the parties be resolved on oath. This offer was incorporated by the trial Court in its order, dated October 3, 1995 in the following words:‑‑
Later on, on October 9, 1995, the case was fixed for special oath when the following order was passed:‑‑
Under section 9 of the Oaths Act, 1873, form of oath need not be specified before it can be held binding on the parties. However, in the instant case, when the plaintiff‑appellant initiated the matter through an application that controversy be resolved on oath, she prescribed the form of oath in her application. The trial Court should have communicated this offer to the defendant and if same was acceptable to him, the matter at issue should have been resolved on oath accordingly. But in the present case, the whole proceedings have been conducted in an arbitrary and unguided manner. Even the statement of the deponent has not been recorded by the trial Court. In view of the above, as the proceedings have not been conducted as envisaged under the Oaths Act, therefore, the impugned judgment and decree recorded by the trial Court are not in accordance with legal requirements, as such not maintainable.
3. Before parting with the case, we would like to observe that two applications were moved by the plaintiff‑appellant which are on the record containing the endorsement of the Presiding Officer of the trial Court, wherein she had prayed that Muhammad Nazir be summoned in the Court as the defendant in his pre‑trial proceedings had admitted before the Court that out of dower amount, he had paid an amount of Rs.10,000 to the plaintiff‑appellant through Muhammad Nazir. This shows that some statements of parties were recorded by the trial Court before framing issues in the light of their respective pleadings but those statements are not available on record. The proceedings which are conducted in civil matters, must be in writing and same should be kept on record so that these are available even for the Appellate Courts to see and judge whether the proceedings were conducted, and orders passed in accordance with the material available on record or not.
4. In view of the above discussion while allowing this appeal and setting aside the judgment and decree passed by the trial Court, the case is remanded to the trial Court to proceed with the same in accordance with law.
A.A./103/AJ&K Case remanded.
